An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1314


Filed: 18 November 2003

MICAH STORM DULA,                          Caldwell County
A Juvenile.                                No. 98 J 71

    Appeal by respondent Davida Dula Kaylor from an order entered 20 February 2002 by Judge Jonathan L. Jones in Caldwell County District Court. Heard in the Court of Appeals 15 September 2002.

    Lauren Vaughan for Caldwell County Department of Social Services petitioner appellee.

    C. Gary Triggs for respondent appellant.

    McCULLOUGH, Judge.
    This case concerns the termination of the parental rights of the biological mother, Mrs. Davida Dula Kaylor (Mrs. Kaylor), to her son Micah Storm Dula (Storm). The rights of the biological father, Mr. Brian Gossetts (Mr. Gossetts), have been conclusively terminated based on adequate findings of neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and set out in the adjudication and disposition orders dated 20 February 2002. He has made no attempt to appeal. This appeal addresses the termination of Mrs. Kaylor's rights.
    Storm was adjudicated as an abused juvenile on 29 October 1998 within the meaning of N.C. Gen. Stat. § 7A-517(1) (1998 Cum. Supp.) (repealed by Session Laws 1998-202, s. 5, effective 1 July 1999. See now § 7B-101(1) (2001)). The reasons enunciated in the JuvenilePetition were that Storm had been taken to the Grace Hospital Emergency Room and was found to have a broken right femur and several healing rib fractures. Both injuries to Storm occurred under the primary care of Mrs. Kaylor, and she has offered no medically plausible explanation for the injuries. In a disposition order of 29 October 1998, the court ordered that “[i]n order to achieve the goal of reunification, the Court shall require successful completion of the service agreement and intervention plans established with the parents.” In a subsequent permanency planning review held on 1 December 1999, Mrs. Kaylor was found to have substantially complied with these service agreements and intervention plans: she completed the nurturing classes through the Caldwell County Department of Social Services (DSS), she attended therapy sessions, she showed progress on the visits with her child, she paid child support, and she kept her home in order, allowing announced and unannounced visits by DSS.
     However, her service plan also required that
        [s]hould Davida [Mrs. Kaylor] be unable to give an explanation of her son's injuries that is consistent with the medical findings, she should be able to understand how such injuries could occur and ways to insure that such injuries might not occur again.

Mrs. Kaylor never provided any information regarding how and under what circumstances the injuries to the child occurred, and she maintains her denial of involvement or knowledge. On these grounds, the court issued a 10 January 2000 order, requiring DSS to do the following: (1) cease parent-child reunification efforts, (2)plan for relative placement or adoption, and (3) provide limited visitation to Mrs. Kaylor. Mrs. Kaylor appealed the order on the issues of ceasing reunification efforts and the plan for adoption. On 20 March 2000, DSS filed a separate petition for the termination of parental rights of Mrs. Kaylor and Mr. Gossetts, which was later amended on 23 March 2000.
    On 17 April 2001, this Court issued an opinion remanding in part and affirming in part the 10 January 2000 order. In Re Dula, 143 N.C. App. 16, 544 S.E.2d 591, aff'd, 354 N.C. 356, 554 S.E.2d 336 (2001). The Supreme Court denied a Petition for Writ of Supersedeas filed by Mrs. Kaylor thereafter affirming our decision. In Re Dula, 354 N.C. 356, 554 S.E.2d 336 (2001). The case returns to this Court on appeal from the 20 February 2002 adjudication and disposition orders terminating the parental rights of Mrs. Kaylor and Mr. Gossetts.
    Before reaching the relevant issues of this appeal, we first clarify what we held in our 17 April 2001 opinion. There the Court determined that the trial court's findings in the orders entered on and prior to 10 January 2000, specifically that DSS had “made reasonable efforts to prevent or eliminate the need for placement of the juvenile” outside the home, were affirmed. Id.; see N.C. Gen. Stat. § 7B-507(a)(2). Based on this determination, we held (1) the trial court was under the statutory obligation of N.C. Gen. Stat. § 7B-907(d) at the 1 December 1999 permanency planning hearing to either seek termination of parental rights or make alternative requisite findings required by statute. In Re Dula, 143N.C. App. at 18, 544 S.E.2d at 593. We remanded on these grounds. We also held (2) that the trial court was correct in its 10 January 2000 order ceasing reunification efforts, and overruled the argument that parent-child unification should still be sought. Id. at 18, 544 S.E.2d at 594. While there was a dissent on this second holding, the Supreme Court in their review denied the appellant's writ and therefore the issue is final. DSS was thereafter no longer required to make “reasonable efforts” for parent-child reunification.
     In reviewing the briefs, transcript, and record considered in reaching this court's 17 April 2001 decision, we find there are two issues in that appeal which either encompass or render moot each of Mrs. Kaylor's assignments of error. These issues are as follows: (1) did the trial court, on remand from the Court of Appeals, follow this Court's order; and (2) was there clear, cogent, and convincing evidence, as defined by North Carolina case law, for the trial court to find grounds to terminate the parental rights of Mrs. Kaylor; and further, that it was in the best interest of Storm to do so.
    We hold as a matter of law that the trial court, in its 20 February 2002 order terminating the parental rights of Mrs. Kaylor and Mr. Gossetts, did so without error.

Issues on Remand From this Court

The first issue on appeal by Mrs. Kaylor is whether the trial court properly amended its 10 January 2000 order, issued after the 1 December 1999 hearing, to comply with this Court's 17 April 2001opinion as affirmed by the Supreme Court. In that opinion, we required the trial court to take one of two statutorily mandated courses of action in its permanency planning hearing.
     The trial court, in its 10 January 2000 order, required DSS to establish a plan for Storm's adoption, but made no order or findings concerning the termination of parental rights. Because Storm had been in the custody of DSS for “15 of the most recent 22 months" preceding the N.C. Gen. Stat. § 7B-907 (2001) permanency planning hearing, the trial court was required to “order the director of the department of social services to initiate a preceding to terminate the parental rights of the parent” pursuant to N.C. Gen. Stat. § 7B-907(d). Or alternatively, the trial court could be relieved of the duty to order termination if it made alternative findings pursuant to N.C. Gen. Stat. § 7B-907(d)(1-3). Findings which will relieve the trial court of its N.C. Gen. Stat. § 7B-907(d) obligation are: “The permanent plan for the juvenile is guardianship or custody with a relative or some other suitable person”; “the filing of a petition for termination of parental rights is not in the best interests of the child”; or “[t]he department of social services has not provided the juvenile's family with such services as the department deems necessary, when reasonable efforts are still required to enable the juvenile's return to a safe home.” N.C. Gen. Stat. § 7B-907(1-3) (2001) We held that it must do one or the other, and thus remanded.
    First, we consider whether the petition for termination of parental rights, filed 20 March 2000 (amended as to the father onthe 23rd of March), is at all bound by this Court's remand order of 17 April 2001. N.C. Gen. Stat. § 7B-1111 provides grounds for terminating parental rights which are not conditioned on a determination that a child is abused or neglected. N.C. Gen. Stat. § 7B-1111(a)(3), (5) and (6) (2001). We note further that N.C. Gen. Stat. § 7B-1102 allows parties to file motions to terminate parental rights in pending child abuse or neglect proceedings and gives the trial court authority to consolidate the actions pursuant to N.C. Gen. Stat. § 1A-1, Rule 42 of the North Carolina Rules of Civil Procedure; N.C. Gen. Stat. § 7B-1102(a), (c) (2001); see In re Faircloth, 153 N.C. App. 565, 571, 571 S.E.2d 65, 69 (2002 ); see also Board of Education v. Evans, 21 N.C. App. 493, 204 S.E.2d 899, cert. denied, 285 N.C. 588, 206 S.E.2d 862 (1974) (stating that a trial court has discretionary power, even ex mero motu, to consolidate actions for trial).
    Pursuant to its statutory authority, DSS properly petitioned for termination of parental rights. N.C. Gen. Stat. § 7B-1103(3). We believe it was appropriate for DSS to petition for termination at that time, and agree with the Court in Faircloth that a rehearing on the original adjudication appealed from is not required as a condition precedent to deciding the merits of a termination petition. Faircloth, 153 N.C. App. at 571, 571 S.E.2d at 69.
    Mrs. Kaylor's appeal sub judice is from the 20 February 2002 order terminating her parental rights to Storm. In that order, the trial court took judicial notice of the findings of fact andconclusions of law in all prior orders entered in Caldwell County in Storm's file. We believe rehearing of those issues pursuant to our remand would be redundant. Taking judicial notice effectively consolidated the termination action with the underlying abuse, neglect, and dependency proceedings. Whether DSS sought termination on its own, or pursuant to trial court order in a subsequent permanency planning hearing, is immaterial so long as the substance of our remand order was met. Furthermore, the trial court was not required to make the alternative requisite findings as to why termination was not sought, because it was being sought. Therefore, it was not error for the trial court to hold a hearing on the termination of parental rights and not a rehearing as to permanency planning.
    Finally, we believe consolidation of a hearing on termination of parental rights with pending actions, such as a rehearing on permanency planning, is consistent with the spirit and intent of Article 11 of the Juvenile Code. The legislative intent and construction of the Article, specifically sets out as follows:
        [R]ecognize the necessity for any juvenile to have a permanent plan of care at the earliest possible age, while at the same time recognizing the need to protect all juveniles from unnecessary severance of a relationship with biological or legal parents.

N.C. Gen. Stat. § 7B-1100(2) (emphasis added). We believe requiring redundant procedural formalities would only undermine this intent.

Grounds for Termination
    Standard of Review
    The second and more difficult issue on appeal is determining whether there is sufficient evidence to support the trial court's order to terminate Mrs. Kaylor's parental rights. Her rights were terminated pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) and (2), on the grounds that she abused and neglected Storm, and that she willfully abandoned Storm. The 20 February 2002 order of termination made findings of fact as to these two bases for termination.
    A petition for termination of parental rights must be carefully considered in light of all the circumstances and with the child's best interest as the utmost priority. “Although severing parental ties is a harsh judicial remedy, the best interests of the child must be considered paramount.” In re Adcock, 69 N.C. App. 222, 227, 316 S.E.2d 347, 350 (1984). Termination of parental rights is a two-step procedure. N.C. Gen. Stat. § 7B-1109 (2001); N.C. Gen. Stat. § 7B-1110 (2001). During the initial adjudication phase of the trial, the petitioner seeking termination must show by clear, cogent, and convincing evidence that grounds exist to terminate parental rights. Thus, this is our standard of review. In re Young, 346 N.C. 244, 247, 485 S.E.2d 612, 614 (1997); N.C. Gen. Stat. § 7B-1111(b). A finding of any one of the statutory grounds is sufficient to support termination of parental rights. In re Williamson, 91 N.C. App. 668, 678, 373 S.E.2d 317, 322-23 (1988); N.C. Gen. Stat. § 7B-1111(a)(1-9).      If the petitioner succeeds in establishing the existence of any one of the nine listed statutory grounds, the trial court moves to the second, or dispositional, stage. Here, the trial court determines “whether it is in the best interest of the child to terminate the parental rights.” Young, 346 N.C. at 247, 485 S.E.2d at 615. See also N.C. Gen. Stat. § 7B-1110(a); and In re Blackburn, 142 N.C. App. 607, 543 S.E.2d 906 (2001). The standard of reviewing a court's best interest determination in a termination of parental rights case is whether the court abused its discretion. In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 225 (1995). There is no requirement at this dispositional stage for the court to make findings of fact upon the issuance of an order to terminate parental rights, however such findings and conclusions must be made upon any determination that the best interests of the child require that rights not be terminated. N.C. Gen. Stat. § 7B-1110(b) and (c). “Evidence heard or introduced throughout the adjudicatory stage, as well as any additional evidence, may be considered by the court during the dispositional stage.” Blackburn, 142 N.C. App. at 613, 543 S.E.2d at 910.
Adjudication Order - Abuse

    Because we believe there is clear, cogent, and convincing evidence of abuse of Storm as defined by N.C. Gen. Stat. § 7B- 101(1), we need not consider whether there is also sufficient evidence for termination of parental rights on the grounds of willful abandonment pursuant to N.C. Gen. Stat. § 7B-1111(a)(2).    As grounds for termination of parental rights, a child has been abused if “[a]ny juvenile less than 18 years of age whose parent...[i]nflicts or allows to be inflicted upon the juvenile a serious physical injury by other than accidental means[.]” N.C. Gen. Stat. § 7B-101(1)(a) (2001). For the trial court to reach the determination that a child is abused in accord with this definition, the court must admit and consider all evidence of relevant circumstances or events which existed or occurred before the adjudication of abuse, as well as any evidence of changed conditions in light of the evidence of prior abuse and the probability of a repetition of that abuse. In re Beck, 109 N.C. App. 539, 545, 428 S.E.2d 232, 236 (1993) (citing In re Ballard, 311 N.C. 708, 714, 319 S.E.2d 227, 231-32 (1984)). The determinative factors must be the best interests of the child and the fitness of the parent to care for the child at the time of the termination proceeding. Id.
The following are the findings of facts which the trial court found sufficient to terminate the parental rights of Mrs. Kaylor:
        1.    The juvenile's name is Micah Storm Dula. He was born on January 3, 1998, in McDowell County. Said juvenile currently resides in foster care in Caldwell County, North Carolina in the legal custody of the Caldwell County Department of Social Services.
        * * * *

        6.    The juvenile was adjudicated to be an abused juvenile on or about October 7, 1998.        
        7.    The Court has taken judicial notice of the findings of fact and conclusions of law found in its prior orders entered in Caldwell County File No. 98 J 71 and hereby incorporates said prior orders as if fully set forth within this order.
        8.    The Court has heard overwhelming clear, cogent, and convincing evidence that the Respondent mother abused the juvenile and finds it a fact that she did abuse the juvenile.

        9.    On or about April 25, 1998, the juvenile presented to Valdese Hospital with a possible viral infection. Chest x-rays were taken to rule out pneumonia. The juvenile was discharged that evening to the mother and her live-in boyfriend, James Kaylor.
        10.    On or about April 26, 1998, the juvenile presented to Grace Hospital with a swollen right leg. An x-ray examination of the right leg indicated a fracture to the right femur. Re-examination of the chest x-ray taken on or about April 25, 1998, indicated healing rib fractures which appeared to be older than the femur fracture.

                11. As to the femur fracture, the Court finds that it was a serious physical injury inflicted by other than accidental means. The Court finds, based upon the evidence and testimony presented, that the Respondent mother inflicted said injury.

        12.    As to the rib fractures, the Court finds that they are serious physical injuries inflicted by other than accidental means. The Court finds that at the time those injuries were inflicted upon the juvenile, the Respondent mother was the primary caretaker of the juvenile.

        13.    The Court finds that there was overwhelming clear, cogent and convincing evidence that the mother did in fact inflict the serious physical injury byother than accidental means upon the juvenile.

                14. During the pendency of the juvenile proceeding which began on or about May 1, 1998, the mother never admitted that she inflicted serious physical injury by other than accidental means upon the juvenile. There is a probability of repetition of abuse if the juvenile were to return to the respondent mother.

        15.    The Court specifically finds that Pam Trivette, maternal aunt, did not cause the femur fracture.

        16.    The Respondent mother failed to provide a reasonable explanation for the juvenile's injuries although she did attempt to blame the maternal aunt some three (3) months after the injuries were discovered. Based on the evidence presented, the aunt, Pam Trivette, could not have caused the femur fracture as she did not have contact with the juvenile between the two above-mentioned hospitalizations and the event which caused the femur fracture occurred subsequent to the hospitalization at Valdese and prior to the hospitalization at Grace.

Upon our review of the evidence before the trial court when it made the above findings, we hold such evidence was clear, cogent, and convincing proof of circumstances both before adjudication of abuse and in light of any changed circumstances, to support termination on the grounds of abuse. Furthermore, we believe the child's best interest will be best protected by termination of parental rights on these grounds.
    (a)    Evidence of Abuse prior to its Adjudication
The findings of fact numbered (8) through thirteen (13), fifteen (15), and sixteen (16) depict the court's findings as tothe circumstances during the approximately 24-hour period before the child's injuries were initially discovered. The findings depict the severity of the injuries, that their cause was not accidental, and that the mother was in fact the cause.
    Evidence before the trial court in making these findings of fact was as follows: Doctors, qualified as expert witnesses, testified that Storm suffered rib fractures to the 3rd, 4th, 5th, and 6th ribs and the posterior right 6th and 7th ribs, as well as a spiral fracture to the mid-shaft of the right femur. Testimony showed that these rib fractures were rare in infants, and that if they are caused by accidental means, it is a result of a “fairly severe accident, such as the child being thrown around in an automobile accident, thrown out of a car.” Otherwise, the most common cause of such fractures to a child is abuse, usually from squeezing a child's chest. Furthermore, medical expert testimony showed substantial force was required to cause the type of femur fracture suffered by Storm, like that of a car accident or falling down stairs. Otherwise, the cause was likely an abusive jerking or twisting of the child.
    Testimony and the record showed that over the course of the investigation and during the years Storm was in foster care, Mrs. Kaylor provided different and insufficient explanations for these injuries. At the 29 November 2000 hearing, her explanations for the rib injuries were that Storm may have rolled over on a pacifier or been bumped into, and that the leg fracture may have been caused by an X-ray technician who handled the child at the hospital on thenight of 25 April 1998. Months after discovery of the injuries, Mrs. Kaylor also accused her aunt of causing the femur fracture.     Testimony and the record showed that at the time of the rib injuries to Storm, Mrs. Kaylor was the primary caretaker. Furthermore, testimony of medical experts and records indicate that when Storm was brought to Valdese Hospital on 25 April 1998 for a viral infection, there was no fracture to Storm's femur, otherwise some physical evidence would have been manifest to the attending doctors. At Grace Emergency Room, on 26 April 1998, an x-ray report showed Storm had suffered the femur fracture. A reviewing expert stated that a fracture such as this would typically result in irritability of the child within a few hours, and that swelling to the area of the fracture would occur within six to eight hours. Testimony and the record indicated that Storm was in Mrs. Kaylor's sole custody at all times between the two hospital visits. Particularly, the testimony of her now-husband Jamie Kaylor (Mr. Kaylor) indicated that Mrs. Kaylor never mentioned any swelling to Mr. Kaylor, and that Storm was sleeping soundly from the time he was put to bed at 11:00 o'clock p.m. the night before, until the morning of 26 April 1998 when he left the house around 8:30 a.m. Mr. Kaylor testified that when he returned, at 11:00 o'clock a.m. that morning, he immediately went to where Mrs. Kaylor had Storm on the bed. He believed she was getting Storm ready for a bath or a diaper change, and he immediately noticed Storm's leg was swollen. He testified “it was bad.” He first commented that it lookedswollen and she responded, “Yeah, it is swollen”. She then “[f]lew all to pieces.”
    We believe that the evidence, as set forth in the transcript and the record upon which the trial court made its findings of fact and in turn conclusions of law, is clear, cogent, and convincing. The injuries to Storm were so severe and obvious that their cause was clearly from at least two separate, traumatic events. Because these severe injuries were suffered while Mrs. Kaylor was the primary caretaker, no adequate medical explanation or evidence has been provided that would suggest anything but abuse. Yet, no adequate medical explanation or evidence has been provided that would suggest anything but abuse, as these severe injuries were suffered while Mrs. Kaylor was the primary caretaker.
    (b)    Evidence of Changed Circumstances
The findings of fact as to whether circumstances had so changed that there was no probability of future abuse must be current as to the time of the termination proceeding. See Ballard, 311 N.C. at 715, 319 S.E.2d at 232. If there is no evidence of abuse at that time, parental rights may nonetheless be terminated if there is a showing of a past adjudication of abuse and the trial court finds by clear and convincing evidence a probability of repetition of abuse if the juvenile were returned to the parent. See In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000).
    The trial court found that upon reviewing the evidence of changed circumstances at the time of the 11 July 2002 terminationproceeding, clear, cogent, and convincing evidence still suggested a probability of repetition of abuse. This was the court's finding of fact number 14. Mrs. Kaylor has taken no exception to this finding. Assuming arguendo that she had, we here discuss this issue.
    The trial court found that because Mrs. Kaylor has continued to deny that she inflicted the serious physical injuries upon Storm by other than accidental means, there is a probability of repetition of abuse if Storm were returned to his mother. This finding was based both upon the 11 July 2002 termination hearing, and the judicial notice of the entire Caldwell County file concerning Storm's abuse, specifically all its findings of fact and conclusions of law. We hold that the trial court's finding of the probability of repetitious abuse is supported by clear, cogent, and convincing evidence.
    In the record before us on this appeal, we have reviewed much of which the trial court took judicial notice. Specifically, we note that the record shows Mrs. Kaylor has completed nurturing and parenting classes, been to several monthly counseling sessions, has had monthly supervised visitation with Storm at DSS, has developed more maternal instincts with Storm since he came into care, has maintained employment and housing, and is paying child support. However, despite these improvements, the record and testimony provide two sets of severe injuries to an infant for which there is no explanation. In the findings of fact of the subsequentpermanency planning juvenile review of 10 January 2000, the court stated:
        The Court finds as a fact, based upon the history of this case and the presentations made here in Court that has proffered, that she is still willing to provide the Court with dishonest information about what occurred. She has not accepted any responsibility whatsoever for the injuries to this child. To return the child to her would be an extremely dangerous action under these circumstances.        

The trial court believed, and we agree, that without any adequate explanation or any willingness by Mrs. Kaylor to take responsibility for these injuries, DSS could not provide adequate treatment for Mrs. Kaylor through necessary steps to determine why these injuries occurred and to find ways to prevent them in the future. A particular fear of Storm's Guardian Ad Litem, and also in the Court Review dated 5 September 2001, was the concern regarding Mrs. Kaylor's recurring “explosive outbursts.”
    In light of Mrs. Kaylor's initial abuse of Storm, and her failure to take responsibility or provide a reasonable explanation for Storm's injuries, we believe there is sufficient evidence to hold that circumstances have not significantly changed from when the underlying abuse occurred. Based on the record and transcripts, there is clear, cogent, and convincing evidence of a probable threat of future abuse to Storm.
    The evidence before the trial court was clear, cogent, and convincing to support the findings of fact of the abuse of Storm, and in turn support the conclusions of law based on those findings. Therefore, we overrule all assignments of error as to the trialcourt's findings of fact and conclusions of law as to the 20 February 2002 adjudication order.

     Disposition Order - The Child's Best Interest
    Despite a finding of abuse supported by clear, cogent, and convincing evidence in the adjudication phase, a child's best interest is paramount and may be cause for a trial court not to terminate parental rights in some instances. In re Brim, 139 N.C. App. 733, 743, 535 S.E.2d 367 (2000). We review the trial court's best interest determination under the abuse of discretion standard. Nolen, 117 N.C. App. at 700, 453 S.E.2d at 225.
    Mrs. Kaylor argues that the trial court abused its discretion in finding termination was in the best interest of the child under these circumstances. Mrs. Kaylor argues that evidence was before the court that as of the conclusion of the trial, she had obtained housing and employment, completed her nurturing classes as requested, was married, and was adequately caring for two other juveniles. She also noted that the current foster parents and potential adoptive parents were participating in counseling and struggling in their marriage.
    We believe Mrs. Kaylor's argument falls short of showing an abuse of discretion by the trial court. The best interest of the child in this termination proceeding is a determination as to whether Storm should be returned to Mrs. Kaylor, not whether the adoptive parents are in Storm's best interest. Regardless, the trial court had evidence that the potential adoptive parents had custody for over three years as of the time of the proceedings,beginning when they took custody of Storm when he was four months old. DSS reports, incorporated in the court's disposition order, show Storm has a parent-child relationship with the potential adoptive parents, knows no other home, and removal from that environment would “devastate him.” Additionally, the findings in the adjudication order of a probability for repetitious episodes of abuse clearly support the trial court's discretionary decision as to Storm's best interest. Despite Mrs. Kaylor's laudable progress, the probability of recurring violence outweighs the otherwise general desire of all parties involved for children to be returned to their natural home.
    Therefore, because the record and transcript support the discretion of the trial court in its disposition order dated 20 February 2002, we overrule this assignment of error.
    We have carefully reviewed the remaining arguments and contentions of Mrs. Kaylor and find them moot in light of our decision.
    After careful review of the briefs, transcripts, and record, the trial court's order terminating the parental rights of Mrs. Kaylor is affirmed.
    Chief Judge EAGLES and Judge STEELMAN concur.
    Report Per Rule 30(e).

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